Keystone: Environmentalists Suddenly Rediscover Property Rights

In George Will’s fine column this morning that makes a nice shout out to Power Line, he mentions the lefty billionaire Tom Steyer’s plans to spend heavily not only to block the Keystone pipeline, but to push climate measures generally. I’ve been wondering whether Steyer might go so far as to buy land in on the pipeline route and then attempt to resist the eminent domain proceedings that will be necessary for the building of the pipeline. A few libertarians have raised the issue as well, such as my pal Ray Cordato of the John Locke Foundation in North Carolina.

There’s been some press in the last few days about a court decision out of Nebraska that seems to suggest eminent domain for Keystone is unconstitutional, but I think this is a misreading of the ruling, which appears from news reports (I haven’t chased down the actual opinion) to be a purely administrative ruling that the process hasn’t been done through the right legal authority. In other words, this is a technical ruling, not a truly constitutional one.

Beyond that, we should enjoy the irony of environmentalists suddenly discovering property rights after cheering on every erosion of property rights in favor of unlimited government regulatory power for decades. In fact Steyer will lose his legal challenges because of precedents over 100 years old for projects like Keystone—the same precedents that determined the outcome of the now-infamous Kelo case in 2004. See, for example, Strickley v. Highland Boy Gold Mining Company from 1906, or Dayton Minnig v. Sewall, a Nevada Supreme Court case from around the same time. Both held that it was in fact okay to take private property from A to give to B if B’s private enterprise had some kind of public benefit. Not to mention Berman v. Parker in 1954, which argued that private property could be taken because “The concept of the public welfare is broad and inclusive.” Well, that’s nice. (See also the 1981 Michigan case, Poletown Neighborhood Council v. City of Detroit.)

I’m quite open to the argument–in fact it’s an argument I make enthusiastically–that the entire line of property rights cases going all the way back to Mugler are wrong and should be overturned, but doing so would undermine much of the regulatory state along with it. (This is Richard Epstein’s position, and he is a genius, so I agree.) So environmentalists are stuck: you can’t have robust property rights protection and the regulatory state they depend upon.